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FA/4085/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4085 of 2008
With
CIVIL
APPLICATION No. 10007 of 2008
=========================================================
UNITED
INDIA INSURANCE CO LTD THROUGH - Appellant(s)
Versus
KAMLESHBHAI
NARSHIBHAI HULANI & 1 - Defendant(s)
=========================================================
Appearance
:
MR
VIBHUTI NANAVATI for
Appellant(s) : 1,
None
for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 27/08/2008
ORAL
ORDER
1. Heard
learned advocate Mr.Vibhuti Nanavati for the appellant ? Insurance
Co.
2. In
the present appeal, the appellant ? Insurance Co. has challenged
the interim order passed by the claims Tribunal at Dhangadhra vide
Exh.8 in MACP No.114 of 2002 dated 17.1.2008. It is the case of
injury. Therefore, under Section 140 of the M.V.Act, the claims
Tribunal has awarded Rs.25,000/- with 9% interest in favour of
respondent claimant.
3. Learned
advocate Mr.Vibhuti Nanavati has raised contention before this Court
that detailed written statement was filed by the Insurance Co. before
the claims Tribunal against 140 application. But, none of the
contention was considered by the claims Tribunal. He also submitted
that it is the duty of the claims Tribunal to examine such contention
which has been raised by the Insurance Co. which was available under
Section 149(2) of the M.V.Act. He has placed reliance on the
decision of the Supreme Court in case of Yallwwa vs. national
Insurance Co. Ltd and others, reported in 2007 ACJ 1934 and submitted
that according to that decision of the Apex Court, if such contention
is raised by the Insurance Co., same must have to be examined by the
claims Tribunal. Therefore, according to him, the claims Tribunal has
committed gross error in allowing the application filed by respondent
claimant.
4.
Learned advocate Mr.Nanavati for the appellant ? Insurance Co.
submitted that main application under Section 166 of the M.V.Act is
filed by the claimant which is pending. Therefore, in light of this
background, it is better that this appeal may be disposed of by this
Court with a direction to the appellant ? Insurance Co. to deposit
the entire amount together with cost and interest and 30% may be paid
to the respondent claimant and rest of 70% amount may be deposited
with the Tribunal till the main application is decided by the claims
Tribunal which will meet the ends of justice between the parties.
5. Therefore,
accordingly present appeal is disposed of without expressing any
opinion on merits, with a direction to the appellant ? Insurance
Co. to the Insurance Co. to deposit the entire amount together with
cost and interest before the claims Tribunal within a period of one
month from the date of receiving the copy of this order. After
realizing the amount from the appellant ? Insurance Co., the claims
Tribunal is directed to pay 30% amount to the respondent claimant ?
Shamjibhai Khimjibhai Patel and rest of 70% amount be invested with
any nationalized bank for a period of three years with cumulative
interest and with a periodical renewal till the main application
under Section 166 of the M.V.Act is decided by the claims Tribunal.
The claims Tribunal shall not permit the respondent claimant to
withdraw the application under Section 166 of the M.V.Act. The claims
Tribunal shall have to decide the application u/s 166 of the M.V.Act
independently without being influenced by this order.
6. The
amount deposited with this Court for the purpose of appeal shall be
transmitted to the Tribunal concerned.
7. As the First Appeal No.4085 of 2008 is dismissed, no order is necessitated in Civil Application No.10007 of 2008. Accordingly, Civil Application No.10007 of 2008 is disposed of.
(H.K.RATHOD,J.)
(vipul)
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